PERM Rule (12-14-2004) [Top]

On December 10, 2004, the Office of Management and Budget (OMB) completed its review of the Department of Labor's Final PERM Rule. It is now expected that the rule will be published in the Federal Register in December 2004, as previously indicated by the Department of Labor.

Change to H-1B and L-1 Visas [Top]

The President signed on December 8, 2004 the Appropriation Bill to create a 20,000 H-1B visa exemption for MS/Ph.D. U.S. graduates.   However, USCIS will not yet accept the filing of these cases - perhaps not until the effective date March 8, 2005. The $1500 training fee is immediately effective and the $500 fraud detection fee is not effective until March 8, 2005.  Additionally, an employer will be required to pay 100% of the Prevailing Wage based on the four levels, effective March 8, 2005.

The new law prevents an L-1B visa holder from being stationed at a worksite of another employer in cases where:

1.       The L-1B visa holder will be controlled and supervised by an unaffiliated employer; OR

2.       The L-1B visa holder is placed at the third party site as part of an arrangement to provide labor for the third party rather that at the third party site providing a service involving specialized knowledge specific to the petitioning employer.

Training Fee for H-1B Petitions (12-08-2004) [Top]

Effective December 8, 2004, the training fee of $1,500 for H-1B visa petitions has been reinstated in most cases. For an employer with no more than 25 full-time employees as defined on the Form I-129W, the fee is $750. This fee is not yet reflected on the paper Form I-129W, however it must be submitted.

The PERM Regulation (12-04-2004) [Top]

There continues to be no movement on the PERM regulation for permanent labor certification. Because of embargoes on information imposed by the Department of Labor on this pending regulation, no additional information is available as to what will be in the final regulation and when it will be issued.

2006 Diversity Visa Lottery Registration Begins (11-18-2004) [Top]

Registration for the 2006 Diversity Visa (DV) Lottery has begun.

 

Persons seeking to enter the lottery program must register online through the designated Internet website during the registration period. The website for registering www.dvlottery.state.gov is available until noon January 7, 2005.

 

In response to demand, the Department tripled the number of servers hosting the registration website this year. In addition, persons submitting entries to the 2006 lottery will receive a notice of receipt now containing their name, date of birth, country of chargeability, and a time/date stamp when information has been properly registered at www.dvlottery.state.gov.

 

The Department continues to encourage persons who wish to enter the 2006 Diversity Visa Lottery to submit their information early in the two-month registration period.

 

There is no fee charged for entering the Diversity Visa Lottery. The Department of State does not endorse, recommend or sponsor any information or material from outside entities. The Department is aware that websites and email have masqueraded as official Diversity Visa Lottery facilitators. Registration for the Diversity Visa Lottery through the official, U.S. government website, www.dvlottery.state.gov is free of charge and notification of winning entries are sent by mail only.

 

The 2006 Diversity Visa Lottery marks the second year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.

Updates from Department of Labor (DOL) (10-31-2004) [Top]

DOL continues to confirm that the PERM regulations should be published before the end of the year.  However, the effective date of the regulations would be 60 days from the date of publication and not 120 days.  Thus, 61 days after publication, the State Work Force Agencies (SWA) would no longer accept the filing of new Labor Certificate Applications.

DOL’s Interim Federal Regulation published in July 2004 authorizes the consolidation of the state and federal function for processing Labor Certificate Applications.  To this end, two Backlog Reduction Centers (BRC) have been established in Philadelphia and Dallas.  The case load of the Regional Offices in those two cities have been transferred to these centers.  Additionally, 20,000 cases from the San Francisco Regional Office have been transferred to the BRCs.  When a case is data entered at the BRC, a letter will be generated advising of the transfer.  DOL has stated that its goal for processing cases is on a first in first out basis.

Cases completed by the SWAs before January 1, 2005 are to be forwarded to the appropriate Regional Office.  Cases completed by SWA after January 1, 2005 are to be forwarded to the appropriate BRC.  Effective January 1, 2005, SWAs will simply date stamp all new cases and forward these case to the BRC based on a schedule to be received from DOL.  It is expected that by March 31, 2005, all cases pending at the SWAs will have been transferred to either a Regional Office or a BRC.

CSC Liaison Meeting of October 27, 2004 (10-31-2004) [Top]

CSC completed 1.6 million cases this past fiscal year.  As of September 30, 2004, CSC had 935,000 cases pending, a drop of 32% from October 1,2003.   

For fiscal year ending September 30, 2004, the denial rate for L-1 visa petitions was approximately 18%, The denial rate for change of status to H-1B was approximately 29%.  Apparently this rate was similar for all four Service Centers.

Current processing times for L-1 visa petitions is approximately 30 days, for H-1B visa petitions 60 days and for change of status 90 days.  CSC hopes to maintain these processing times during this fiscal year.

If an I-140 is pending and an I-485 is filed, CSC joins the two cases so as to adjudicate them at the same time, whenever possible.

Changes to the wording on the approval notices for I-485s referencing the need for scheduling an appointment through InfoPass and new photo instructions must be made by Headquarters. CSC does not have control over the wording on the approval notices nor on receipt notices.

H-1B Visa Cap Reached (10-04-2004) [Top]

The USCIS announced after the close of business on Friday, October 1 (the first day of the 2005 fiscal year), that it had enough cap-subject H-1B petitions in the pipeline to meet the fiscal year 2005 cap.

All cap-subject petitions received after last Friday (October 1, 2004) will be returned. The next date on which cap-subject H-1B filings can be accepted by the USCIS will be April 1, 2005 (for a start work date on or after October 1, 2005).

H-1B Visa Cap (09-22-2004) [Top]

The USCIS recently advised that the H1-B visa cap would not be reached for another few weeks. The reason – recapture of unused Singapore/Chile free trade numbers. Therefore, H-1B visa numbers may continue to be available until the end of September 2004 or early October 2004.

Perm Regulation (09-22-2004) [Top]

The PERM regulation remains pending at OMB, and it is widely believed that, it will not be published until after the November 2004 election. It is believed that some key changes have been made from the proposed rule. Should the regulation be published, the cases would be handled at the two National Processing Centers located in Atlanta and Chicago.

Backlog Reduction Centers (09-22-2004) [Top]

Labor Certification Applications pending at the Dallas and Philadelphia DOL Regional Offices are being transferred to the Backlog Reduction Centers in those two cities. As part of the data entry process at the Centers, letters are being sent to employers and their representatives advising them that the applications have been transferred from the Regional Office to the Backlog Reduction Center. These letters are requesting updated information.

Appointments Needed Prior to Going to Local USCIS Offices(09-16-2004)  [Top]

The USCIS introduced a new link at its web site (http://infopass.uscis.gov/) to be used for making an appointment prior to visiting a USCIS office. An individual will only be admitted into a USCIS office with an appointment letter. Thus please refer to this link and schedule an appointment before going to the local USCIS Office.

H-1B Visa Cap for Fiscal Year 2005 (October 1, 2004 through September 30, 2005) (09-16-2004) [Top]

The USCIS announced that as of August 18, 2004, it received 45,900 H-1B visa petitions against the 65,000 H-1B visa cap for the fiscal year of 2005 (October 1, 2004 through September 30, 2005).

It appears that the H-1B visa filings may be steadily increasing in the month of September 2004. It is difficult to predict when the H-1B visa cap may be reached: likely in September/early October 2004.

SUMMARY OF CSC LIAISON MEETING ON 08-25-2004 (08-31-2004) [Top]

Adjustment Applications (I-485s) [Top]

If CSC responds to an inquiry on a case beyond the JIT report and the response is that “the case is with an officer” – it is reasonable to expect an action within 30 days.  If 30 days pass and no action is taken, it is likely that the case is pending security clearances.

Cases with expired fingerprints should have been re-scheduled by the end of September 2004.  If a new appointment has not been scheduled, an inquiry can then be made.

EB-2 Pilot Project for concurrently filed I-140s and I-485s: it is apparently not feasible to process these cases within the projected 90 day period.  The needed security checks are normally not completed within this very short window.

Adjustment cases transferred to the local office for interview include: individuals who entered without inspection, 245i cases, criminal record and/or applicant is no longer working for the petitioning employer.

If a principal applicant’s case is granted and an action is not taken on the dependents’ applications within 30 days, an inquiry should be sent to CSC.

Advance Parole Applications (I-131) are normally being adjudicated now within 30 days.

Work Permit Applications (I-765) are also being processed within approximately 30 days.  Since CSC has a backlog reduction plan in place, EAD cards for Adjustment Based cases will continue to be issued with a validity of one year only.

Nonimmigrant petitions [Top]

CSC is processing cases for the most part within 60 days.

Employment Based Immigrant Visa Petitions [Top]

These petitions will continue to be processed at the current rate – no special attention will be given, thus processing times will remain constant.

Family Based Petitions [Top]

Since CSC is current in the processing of family based petitions with current visa numbers and immediate relative petitions.  The Texas and Nebraska Service Centers are transferring a number of family based petitions to CSC for adjudication.  However, this transfer of cases is not expected to affect CSC’s ability to remain current with its caseload.

 

H-1B Visa Cap for Fiscal Year 2005 (08-24-2004) [Top]  

As of August 4, 2004, the USCIS had received 40,000 H-1B visa petitions subject to the fiscal year 2005 (October 1, 2004 to September 30, 2005) cap. Of these petitions, 21,000 have been approved; the rest are being processed. The effective H-1B cap for the fiscal year 2005 is 58,200 due to the Chile/Singapore FTAs. 

The leftover Chile/Singapore numbers from fiscal 2004 will be added back in to the fiscal 2005 limit, but not until October 1, 2004. These cases need to be adjudicated before November 15, 2004. It is generally believed that very few Chile/Singapore numbers have been used in fiscal 2004, but there is no exact count.

H-1B Visa Cap for Fiscal Year 2004 (08-24-2004) [Top]  

The USCIS advised that it has adjudicated 56, 100 H-1B visa petitions toward the H-1B cap for fiscal year ending September 30, 2004. A number of cases are still pending for adjudication.

Filing of 7th Year H-1B Visa Extensions (08-24-2004) [Top]  

According to the USCIS, the request for an H-1B visa extension beyond the sixth year, under the 2002 DOJ Authorization legislation that amended AC21, must be filed no less than 365 days after the date the labor certification application was filed. If the H-1B visa extension is filed prior to 365 days since filing the Labor Certification, then it is subject to denial, even if the extension would not take effect until after the 365 days. 

Supplemental Information regarding the H-1B cap affecting F and J Nonimmigrants (07-29-2004) [Top]

On July 23, 2004, the Department of Homeland Security (DHS) published a supplemental notice in the Federal Register regarding the extension of status for certain F and J nonimmigrants in view of the numerical cap for fiscal year 2004 being reached in February 2004. 

The Secretary of Homeland Security has exercised his authority for this fiscal year to extend the duration of status for certain F and J (exchange visitor students only) visa holders whose prospective employers have timely filed (received by UCCIS prior to July 30, 2004) a request for change of nonimmigrant status to that of an H-1B visa, provided that the employment start date is no later than October 1, 2004. This measure will prevent a lapse of status for aliens who have maintained their status and would otherwise be eligible for a change to H-1B status if the annual H-1B numerical limitation had not been reached. In this context, “timely filed” also refers to an application for a change of nonimmigrant status filed prior to the expiration of the alien’s period of authorized stay in the United States. SEVIS will continue to maintain the record of an F-1 or J-1 nonimigrant whose stay is extended. 

If the H-1B visa petition is approved before October 1, 2004, the alien will continue in the extended grace period as an F-1 or J-1 student until October 1, 2004. The duration of status for dependents of affected F-1 or J-1 nonimmigrant aliens is also extended under this notice until October 1, 2004. 

If the application for a change of status to H-1B is denied within the 60-day (for F-1) or 30-day (for a J-1) grace period of the alien’s completion of studies, program or optional practical training, the alien and any dependents may finish his or her respective 60 day or 30 day grace period. If the H-1B is denied after the 60-day or 30-day grace period, the alien’s F-1 or J-1 status is terminated as of the date of the decision and he or she, as well as any dependents, must immediately depart the U.S. 

USCIS To Change to Passport-Style Photographs (07-29-2004)

The USCIS will be adopting the Department of State’s photograph standard (passport photos) for all documents/applications or petitions filed with this agency. Effective September 1, 2004, the USCIS will change from ¾ profile (ADIT-style) photographs to full frontal photographs for all documents produced. Information regarding the photograph guidelines is found at the web site: 

http://travel.state.gov/passport/pptphotos/index.html  

Until September 1, 2004, the USCIS will accept either ADIT-style or passport-style photos. However, Requests For Evidence for other reasons may also include a request for new photographs. On and after September 1, 2004, only passport-style photos will be acceptable. 

For applications and petitions currently pending with the USCIS, do not submit new photos unless requested to do so.

Interim Rule Lifting the One Year Limitation on EADs (07-29-2004)

The Department of Homeland Security published an interim rule, which lifts the one-year limitation on EADs (Work Permits). This rule allows the issuance of EAD cards for asylum seekers to be valid for 5 years. For other types of EAD cards, USCIS will have discretion as to the validity period. 

Department of Labor (DOL) Backlog Reduction Plan (07-22-2004) [Top]

On July 21, 2004, DOL published an interim rule, which will become effective on August 20, 2004, aimed at reducing the processing time of Labor Certification Applications. This interim rule will only affect Labor Certification Applications filed under the existing regulations (it will not affect the streamlined PERM labor certification regulation, which is expected to take effect in 2004). 

According to the interim rule, the National Certifying Officer will have discretion to direct the SWAs and ETA Regional Offices to transfer pending Labor Certification Applications to a centralized processing center for completion of processing.  

The centralized processing center will perform the functions of both the SWAs and ETA Regional Certifying Officers so as to consolidate resources and achieve efficiency. The extent of centralized processing and the speed with which the current backlog will be reduced may vary based on the program priorities. 

If a Labor Certification Application presents a special issue or problem, the centralized processing center may refer the application to the National Certifying Officer for determination. 

End of Drop Box Procedure for NIV Applications in India (06-24-2004) [Top]

The U.S. Embassy in New Delhi announced the end of the Drop Box procedure for non-immigrant visa (NIV) applications at all four consular posts in India. The last day for the NIV drop-box in Chennai will be June 30, 2004. An exception is made to the members of the Chennai Business Executive Program who may continue submitting NIV applications to TT Services under the normal BEP procedures until July 15th, 2004. As of July 16, all NIV applications in Chennai will require an appointment for a personal interview with a consular officer.

Consular sections in India will start electronically collecting biometric data (scanning index fingerprints) from all visa applicants, except those traveling on official government business or who are under age 14 or over age 79. The scanned fingerprint data collected at time of visa application will be compared with fingerprint scans at the U.S. port of entry to prevent the use of U.S. visas by imposters and by those wanted for criminal offenses.

This is a worldwide program required by U.S. law and has already been implemented in more than 150 U.S. Consular sections around the world. The U.S. visa offices in Frankfurt, Brussels, San Salvador, and Guatemala were the first posts to begin this program on September 22, 2003.  

DOS to End Revalidations in U.S. (06-24-2004) [Top]

The Department of State (DOS) announced the discontinuation of its domestic visa reissuance service for most nonimmigrant visas. DOS will no longer accept applications seeking to renew C, E, H, I, L, O or P visas after July 16, 2004. To be processed, applications must be received by our application acceptance facility in St. Louis by July 16, 2004. Any application received after this date will be returned, using the sender's required self-addressed, stamped envelope or pre-paid courier airbill.

DOS is discontinuing the reissuance of visas in these categories because of increased interview requirements and the requirement of Section 303 of the Enhanced Border Security and Visa Entry Reform Act (Pub. L. 107- 173, 116 Stat. 543) that U.S. visas issued after October 26, 2004, include biometric identifiers. It is not feasible for the Department to collect the biometric identifiers in the United States.

In order to mitigate the inconvenience to applicants, the DOS will direct all visa adjudicating posts to accommodate on a priority basis applicants who would have benefited from our visa reissuance services. Visa interview appointments may be made for some posts through Internet sites or by telephone. Additional information regarding posts and visa interview appointment systems may be found at http://usembassy.state.gov.

All applicants are encouraged to apply in their home countries. U.S. visa adjudicating posts in Mexico and Canada have some capacity to accept nonimmigrant visa applications from stateside applicants. In all cases, applicants should obtain an interview appointment before traveling.